Snow v. Joe

So they can't figure out what to do with Jodi Arias who either plotted and carried out the cold blooded murder or . . . . Ah, the hell with it. 

Twelve good men (and women) and true couldn't agree unanimously on whether she should be put to death on their direction or spared to spend the remainder of her life in prison with no hope of ever being released.  Execution or Death in Prison.*

Of course, the media knows.  The folks who follow the trial as entertainment know.  Everyone knows.  But those fools on the jury.  Sigh. 

Frankly, there's nothing remotely interesting about the Jody Arias case (unless the near-pornographic salaciousness turns you on).  Well, there is the fact that since the jury couldn't decide the prosecutors can, if they insist on trying to have her killed rather than letting her rot - they get to redo the sentencing phase in front of a brand new 12.  Who will have to learn all the facts and circumstances of the crime, and then all the reasons why she should or should not be --

Good god.  Television may never recover.

Really, though, I didn't want to write about her case.  I have nothing interesting to say about it.  Except, well, it's Maricopa County, and we here at the home office of the Gamso for the Defense blawg haven't been paying much attention to the goings on there since Andy Thomas got his ticket yanked and DOJ finally got around to suing Sheriff Joe.

But now, in one week, there's the penalty-phase mistrial and, finally, a decision in Melendres v. Arpaio.  Friday, the Honorable G. Murray Snow, U.S. District Judge for the District of Arizona (that's him on the right), appointed to the federal bench by President Shrub, issued his Findings of Fact and Conclusions of Law in which he found and concluded that Joe and his deputies operate in exactly as unconstitutional and racist a manner as everybody who actually paid any attention knew they did. 

Their actions, Judge Santos said, violate the Fourth Amendment rights of Latinos in Maricopa County to be free from unreasonable searches and seizures.  And, he said, they violate to "equal protection under the

Fourteenth Amendmentto the Constitution and Title VI of the Civil Rights Act of 1964.

Fernanda Santos in the Times:

At 142 pages, the decision is peppered with stinging criticism of the policies and practices espoused by Sheriff Arpaio, who Judge Snow said had turned much of his focus to arresting immigrants who were in the country illegally, in most cases civil violations, at the expense of fighting crimes. 

He said the sheriff relied on racial profiling and illegal detentions to target Latinos, using their ethnicity as the main basis for suspecting they were in the country illegally. Many of the people targeted were American citizens or legal residents.

To all of which, as you might expect, Tim Casey, a lawyer representing Joe and his boys, said

No flies on us.

OK, I admit that was a bit flip.  Here's what he actually said, according to Santos.

Tim Casey, a lawyer for the Maricopa County Sheriff’s Office, said the office intended to appeal, but in the meantime it would “comply with the letter and spirit of the court’s decision.”

He said the office’s position is that it “has never used race and never will use race to make any law enforcement decision.” 

The office relied on training from the United States Immigration and Customs Enforcement agency, he said, adding, “It’s obvious it received bad training from the federal government.” 

Got that? We didn't do anything wrong. We will of course obey the judge's injunctions, as we always do the right thing.  We're appealing because we always do the right thing.  It's the fault of the federal government that we did the wrong things.  Which we didn't do. 

Anyway, and regardless of the spin, Arpaio and his minions lost.  Which is right and appropriate.  And there is an injunction.

IT IS THEREFORE ORDERED that Plaintiffs are entitled to injunctive relief necessary to remedy the Fourth and Fourteenth Amendment violations caused by MCSO’s past and continuing operations. The MCSO is thus permanently enjoined from:

            1. Detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization.

            2. Following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County.

            3. Using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant.

            4. Using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization. 

             5. Detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law.

            6. Detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present.             7. Detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

And there's going to be a hearing June 14 where they'll all sit down and try to figure out how to make Arpaio actually obey.  Which, you'll recall, he insists he will do since he's never done those things before and certainly won't now because they're right and noble and the American way and the judge said to knock it off and besides, he's appealing to have the ruling overturned so he can go back to doing what he's always been doing which is exactly what he wants not to be ordered to do because then the terrorists communists wetbacks persons of foreign but not northern European extraction who entered this country without authorization from him would win. Or something.

Andy Jackson is said to have said when the Supreme Court told him he couldn't remove the Cherokee to Indian Country,

"John Marshall has made his decision; now let him enforce it."

Patrik Jonsson in the Christian Science Monitor wonders if this isn't a "turning point" for Joe.

But if the court ruling represents a victory for immigration advocates and a legal reversal for Arpaio, it's also clear that, even before the ruling, Arpaio had been losing support among more educated white voters even as opposition against him had galvanized among ascendant Hispanic voters, the Arizona Capital Times newspaper reported recently. Arpaio won reelection with only 50.7 percent of the vote last November, his lowest total.

My friend Nick, who's on the ground in Arizona (though not in Maricopa), had a slightly different take.

People sorta figure he's going to keep doing what he's been doing until he is removed from office, dies, or is sent to prison. 

Which is another way of saying that Joe's likely to channel Andy Jackson's (likely apocryphal) response to a smackdown from the Supreme Court, just changing the name from John Marshall.

Judge Snow has made his decision; now let him enforce it.

Since nobody with any authority in Arizona, and certainly nobody in the Justice Department seems to have the cojones seriously to take Joe on, that leaves the voters and the Grim Reaper.  Of course, Joe just did win reelection.  Then again, he turns 81 in a couple of weeks.

----------
*Actually, it appears that Arizona law also allows a sentence of life with parole eligibility.  All those who think that a likely sentence, feel free to raise your hands now.  That's what I thought.  In any event, parole eligibility isn't the same as parole.  Just ask Susan Atkins.  Ooops, too late.  She's dead.  Died in prison.  After being denied parole. 

With All Deliberate Slowness: DOJ v. Sheriff Joe

You'll be shocked, shocked to hear that he didn't just roll over.  Or maybe not.

But then, you don't live in a world where you think everyone should fear you, where you know that the hearts of people in power are all pure.  You don't believe in the Easter Bunny, either, I suspect.

Thomas Perez probably doesn't believe in the Easter Bunny, either (though I don't know that for sure).  He does, apparently, buy into the rest of that.

Perez is the Assistant Attorney General in charge of the Civil Rights Division of the Department of Justice, and he's just deeply disappointed they couldn't work it out.Oh, sure, they disbarred Andy.  Then again, he didn't exactly go gently into that good night, hanging his head in shame.  Hell, from his point of view, he's a martyr.

So what were the odds that Sheriff Joe would cave? Would admit he could use some help?

Gosh golly, I must have fucked up.  Sure, I'll let you guys appoint an overseer to make sure I do better from now on?

No, you wouldn't think so.

Though Perez apparently did. So he's surprised and disappointed that it's come to this.

USA v. Maricopa County - Complaint Mcso Lawsuit

This is only the second time, Perez said, that they've had to sue.  In whole bunches of other cases, from one end of this fine country to the other, they've settled, worked out agreements, collaborated on fixing the problem.  Perez ought to pay attention to his own complaint.  Here, if you don't want to go back up the page, is how it begins.

1. The Maricopa County Sheriff's Office (MCSO) and Sheriff Joseph M. Arpaio (Arpaio) have engaged and continue to engage in a pattern or practice of unlawful discriminatory police conduct directed at Latinos in Maricopa County and jail practices that unlawfully discriminate against Latino  prisoners with limited English language skills. . . . In addition, Defendants MCSO and Arpaio pursue a pattern or practice of illegal retaliation against their perceived critics by subjecting them to baseless criminal actions, unfounded civil lawsuits, or meritless administrative actions.
2. As a result of the pattern or practice of unlawful discrimination, Latinos in Maricopa County are systematically denied their constitutional rights . . . . MCSO and Arpaio's conduct is neither constitutional nor effective law enforcement.

Oh, sure, Joe would sign off on that in a heartbeat.

My bad. Mea culpa. I need help.

Really, though, Joe won't be fixed because Joe isn't the problem.  Perez is.  Or so Joe says. He sees this as an Obama-inspired witch hunt designed to garner Latino votes for the re-election campaign.

We are not racist. We do not racial profile. 

There you go.  Ain't true. How do we know it isn't true?

There's no systemic proof of that.

Ah, if it can't be proved, it didn't happen.  And of course, vindication is on the way.

I'm very happy that we are being sued.

Now, vindication for Joe is an interesting thing. Here's E.J. Montini for the Arizona Republic after talking with Mike Manning, a lawyer who's sued Joe successfully.

In January 1999, Manning got an $8.25 million court settlement for the family of a jail inmate named Scott Norberg, who died while being manhandled in a restraint chair in Arpaio’s jail.

Arpaio declared victory because the monetary judgment didn’t require him to admit guilt.

In 2006 a federal jury awarded $9 million to the estate and the parents of a mentally challenged man named Charles Agster III, who also died in a restraint chair at the county jail.

Again, Arpaio declared victory, this time because the judge reduced the jury’s original $10 million award by a million.

Montini sums it up this way. (The italics are EJ's.)

Arpaio doesn’t lose, even when he loses. Especially when he loses.So look for a declaration of victory.  Some day.

Joe's been Sheriff for decades, and his been doing the same stuff all that time. DOJ began investigating Joe in 2008, when Shrub was still President. It would have gone faster, Perez says, if Joe hadn't been obstructionist. Now, of course, we can assume he'll cooperate.  After all, he certainly won't want to live under the cloud of this lawsuit.

Oh, wait, yes he will.

And then, whatever happens, he'll declare victory. 

Megalomania in Maricopa

Yesterday, Andy Thomas was disbarred for being corrupt.  His response was to declare,

Today corruption has won and justice has lost.

A friend described that as "delusional hubris."

Of course, that was an off-the-cuff comment.  Now that he's had a full day to consider, his words are more measured. Michael Kiefer and Yvonne Wingett Sanchez in the Arizona Republic report.

"Someone has to fight for justice," Thomas said, comparing himself to Mahatma Gandhi and Martin Luther King Jr.

Really?  Gandhi?  Martin Luther King, Jr.? 

Another friend saw that and wrote

Delusional and paranoid is a bad combo.

Which led yet a third friend to respond.

Not to mention the fact that if either of them were active during his reign, he would have indicted both of them.

Me, I wondered if Thomas just forget to add that his suffering was like that of Jesus on the cross or whether some editor at the Republic deleted that reference?

In yesterday's comments, Thomas referred to a study of state corruption conducted by the Center for Public Integrity, Global Integrity and Public Radio International.  Arizona, Thomas said,

has some of the worst corruption in America.

It's true, maybe.  Arizona got a D+, putting it in the bottom half of the states.  Barely.  It actually ranked 27th out of 50.  (You can read the details here.)  In the Buckeye State, we did worse.  A grade of D, 34th out of 50.

Ohio has no shortage of ethics laws, but it has a history of state officials violating them. 

And our former attorney general, Marc Dann, resigned from office in disgrace, entered guilty pleas to ethics reporting violations, and is fighting not to have his license yanked for 6 months.

But that's for ethical incompetence.  Dann ran the AG's office like a frat house complete with pizza and pajama parties and sexual harassment.  And he screwed up his financial disclosure forms.  No excuse, but not exactly corruption in office, either.

Andy used his office to go after political opponents, really, to go after anyone who looked askance at  Sheriff Joe and his gang of thugs deputies.

And now he's a self-declared martyr.

One more time.

h/t Kathy G, Nick F, & Brian S

Smoke Slowly Curling Skyward

Today corruption has won and justice has lost.

That was Andy Thomas, former member of Joe 'n' Andy, former prosecutor in Maricopa County (they call the job "County Attorney").  Unrepentent sinner.  And, oh, yeah, former lawyer.

Most importantly, a man who's just wrong.  Today, and it may only be preliminary, and it may not last, and there's sure more to do, but today corruption lost and justice, whatever exactly that might be, pretty clearly won.

Yvonne Wingett Sanchez and Michael Kiefer in the Arizona Republic.

Former Maricopa County Attorney Andrew Thomas and his onetime deputy, Lisa Aubuchon, were stripped of their law licenses today as a disciplinary panel handed down the toughest sanctions possible for ethical violations in a case that attracted national interest.

The panel also suspended Rachel Alexander, another Thomas deputy, from practicing law for six months and one day for her role in filing a federal civil racketeering lawsuit against judges and county officials.

After the verdict, Thomas spoke only briefly [and with what a friend rightly describes as "delusional hubris."]

"Today corruption has won and justice has lost," he said. "I brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license. Arizona has some of the worst corruption in America, according to a recent national survey. The political witch hunt that's just ended makes things worse by sending a chilling message to prosecutors: Those who take on the powerful will lose their livelihood."

Because today Andy Thomas was disbarred (it actually takes effect in 30 days, giving him time to appeal).  Law license yanked by a 3-member disciplinary panel appointed by the Arizona Supreme Court.  The panel examined 33 charges of misconduct against Andy and two of his deputies as "respondents."  They took weeks of testimony.  And then they decided.  

Andy Thomas Discipline

You should read the whole thing (yeah, right), but here's a snapshot from the last substantive paragraph of the 232 page opinion, written by the Presiding Disciplinary Judge, William J. O'Neil. It ends this way, with reference to the framers and the pledge of allegiance.

With time, a pledge was created to underscore the foundational principles of our great country. That pledge ends with four words. The words may be simple, but they are profound. “And justice for all.” This Panel is firmly convinced justice for all has occurred in this case. It is also firmly convinced Respondents never intended the same.

If that's not clear enough, maybe the 15 page concurring opinion by the public member of the panel, Rev., Dr. John C.N. Hall will make the point.

This is the story of three unethical attorneys, Andrew Thomas, Lisa Aubuchon, and to a lesser extent, Rachel Alexander. This is the story of County Attorneys who did not “let justice be done,” but rather, birthed injustice after injustice. This is the story of the public trust dishonored, desecrated, and defiled. This multi-year-wreck-of-a-ride, operated by Andrew Thomas and staffed by Aubuchon and Alexander, outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law. By the time Andrew Thomas resigned, with his hopes of attaining higher public office and greater public trust, his legacy lay in a smoldering heap, its smoke slowly curling skyward like a prayer for relief.

Of course, this isn't the end.  There will be that appeal.  And Andy's real partner in all of this, Sheriff Joe, is still going strong.  But it seems that whatever justice is, for the moment it's prevailed.  Corruption, hubris, megalomania, the powerful struck down.

A first step.  Not a small one.  But just a step.

Pay attention.  Let's see what happens next.

Sheriff, Arrest Thyself

I turned to the Arizona Republic because I wanted to write about the execution this evening of Donald Beaty.  I still want to, and I will.

But you know how it is when you dip a toe into the waters deserts (that's not fair, there's water, in the Copper State, too) of the Grand Canyon State.  You just get sidetracked because dammit, Sheriff Joe and the boys have made the news again.

This time it isn't Joe himself making the headlines, it's three of his minions.

3 in MCSO accused of cartel ties

Seems that Tuesday morning, following a yearlong investigation, a Multi-District Drug Task Force arrested a dozen people and darned if three of them didn't work for Joe.

Deputy Alfredo Navarrette, 37, has worked with the Sheriff's Office for nearly a decade, serving in a special unit designed to target human smugglers moving through Maricopa County. But investigators believe Navarrette was himself involved in human smuggling. Investigators found two undocumented immigrants in Navarrette's home when he was arrested early Tuesday morning in a sweep that concluded a yearlong investigation.
"The fight against drugs, illegal immigration and human trafficking is important not only to me but the citizens of Arizona," Sheriff Joe Arpaio said. "That a deputy sheriff would provide information and associate with these drug and human traffickers is despicable."
Investigators from a multijurisdiction drug task force also arrested two sheriff's detention officers, Sylvia Najera, 25, and Marcella Hernandez, 28. They are accused of laundering money and moving drugs for a Valley-based drug-trafficking organization with ties to Mexico.
Arpaio said Hernandez is eight months' pregnant with the child of another suspect arrested Tuesday, Francisco "Lorenzo" Arce-Torres, who is described in court records as a member of the Sinaloa drug cartel and the leader of the Phoenix-based drug-trafficking organization at the heart of the probe.
Court records indicate Hernandez had $20,000 cash on her when she and Najera were arrested Tuesday morning on their way to work at the Lower Buckeye Jail.

So, let's recap.  Three of Joe's folks are busted for being part of a drug smuggling ring.  One of them is part of Joe's special anti-immigrant unit and allegedly hires or harbors or something undocumented immigrants.  That's embarrassing.  Another is 8 month pregnant with the child of the head of a drug cartel.  A third is carrying 20 grand that are, supposedly, drug proceeds.

Are any of the three (hell, any of the 12) guilty?  No idea.  Innocent people get arrested all the time.  So do guilty ones, of course.  But it isn't pretty.

And Joe?

Physician, heal thyself.

Schadenfreude.

Maricopa One Again

It's not what we've been waiting for.  

We've been waiting for the Justice Department to sue Sheriff Joe (and Andy Thomas) for abuse of their power, for violating the constitutional and statutory civil rights of the people of Maricopa County.  This, though, is what we got.

US v. Arpaio  

What we got is that Justice sued Joe for being contemptuous.  They don't call it that, of course, but that's what it comes to.

One provision of the 1964 Civil Rights Act says that if you take federal money, you have to give the feds access to your facilities and records so they can assure you spend it in compliance with the law.  (I'm oversimplifying a lot.)  Maricopa and Sheriff Joe have taken federal money.  The feds have been investigating since June 2008.  They've been trying to get records since March 2009.

Joe won't give access and won't turn over the records.  He's said so repeatedly, by public statements and in direct communication with Justice.  Justice narrows the request.  Joe refuses.  Justice repeats the request.  Joe refuses.  Justice says pretty please with chocolate sauce and a cherry on top.  Joe holds a press conference and tells them to fuck off.  Justice asks again, on bended knee.  Joe . . . .

You get the idea.

So finally, Justice sues.

Not for violating anyone's civil rights.  Just for being an obstructionist pain in the ass.  For dissing the feds.

Sigh.

Yvonne Wingett, JJ Hensley and Michael Kiefer lay out charges and counter-charges in the Arizona Republic.

The federal investigation dates to 2008 and seeks to determine whether the Sheriff's Office discriminates on the basis of national origin. Arpaio denies any discrimination and said he was surprised by the lawsuit. He has 21 days to respond.
The civil-rights probe is unrelated to a separate abuse-of-power criminal investigation against the Sheriff's Office by the Justice Department, which is connected to long-running disputes with county government and the judiciary and has led to months of grand-jury testimony.
Attorneys for the Sheriff's Office repeatedly have said they were cooperating with the civil-rights probe but set conditions on the breadth of documents they would release and when. Last week, a sheriff's attorney said in a letter to the Justice Department that he had not agreed to their deadlines.
On Thursday, federal officials made good on their threat to sue. Justice Department officials could not point to a case within the past 30 years in which they had to sue a law-enforcement department to provide access to information.
Dennis Burke, U.S. attorney for Arizona, said that Arpaio's behavior is "self-serving" and pointed out that the Sheriff's Office is legally obligated to provide access to records and facilities because the office receives federal money.
"This is about accountability, and the Sheriff Office's lack of it," Burke told The Republic. "They're trying to design their own self-serving, contorted rules, and they expect unprecedented special treatment different than any other law-enforcement agency across the country - or in history. They want to voluntarily comply with what they want to comply with - despite repeated requests over 17 months."
Attorney Robert Driscoll, who has been negotiating with the Justice Department on Arpaio's behalf, denounced the lawsuit as an attempt to undermine Arpaio's immigration enforcement.
Arpaio released a statement saying President Barack Obama's administration "intended to sue us all along, no matter what we did to try to avert it."
But, according to the lawsuit, officials in the Justice Department's civil-rights unit first started looking at allegations of civil-rights violations by the Sheriff's Office in June 2008, during the George W. Bush era. The probe was not revealed publicly until March 2009.
Arpaio, however, contends the inquiry is part of a conspiracy connecting the White House, Phoenix Mayor Phil Gordon and local advocacy groups.

Stephen Lemons, the Feathered Bastard blogger for New Times is less even-handed restrained.  He calls the lawsuit what it is, "a trumped-up public records request."  The caption on the photo of Joe not-quite giving the finger says it all.

Forget the lame lawsuit, we want to see Joe indicted.

But you know, substantive lawsuits, let alone criminal charges, those are serious things that require who knows what all.

This is just your ordinary contempt of cop charge, except it's contempt of Justice and doesn't get anyone kneed in the groin or shot with a Taser or arrested.  It's just played out politely by lawyers and press agents.

Maricopa County executives, who can't restrain Joe, wring their hands while they quake because it turns out that the surprise winner of the primary contest to replace Andy as County Attorney is another lapdog for Sheriff Joe.  And Joe gets to prance around talking about conspiracies and witch hunts.

And the people of Maricopa?  They stood up one day.

But they keep voting him in.

The refrain to the Phil Ochs song is "Mississippi, find yourself another country to be part of."

And Maricopa?

Who's singing that story?

And who all cares?

That Adversary System? It's Worse in Arizona - with Update

A week and a half ago, I wrote about Asuncion Avila-Villa.  She's facing a death penalty prosecution in Butler County, Ohio, and the prosecutor there is trying to control her defense. 

But before we get back to that (and we will), I need to fill you in just a bit about Butler County.  In particular, I want to tell you about Spotlight Jones.

His given name is actually Richard, and he's the Sheriff of Butler County.  He's known as Spotlight because he seeks it, and of course, he finds it.  His hero, it's said, is John Wayne, and I'm told he has a life-size cardboard cutout of the Duke in his office.

But he's a technological John Wayne.  He's managed, for instance, to put mug shots of all the inmates at his county jail on line.  Along with the charges that they're facing.  Sort of a permanent perp walk.

He doesn't do the pink underwear thing or have a chain gang, but he does have inmates commit suicide at an alarming pace.

And then there's the immigrant thing.  Here's Spotlight now.

The arrow, of course, points to the jail.  And here's one of the billboards he's put up around the county.

He specializes in raids on Hispanic businesses and on places that employ Hispanics. Not surprisingly, Spotlight  isn't particularly interested in tracking down undocumented Canadians.  Equally not surprisingly, U.S. citizens who happen to be Hispanic have been leaving Butler County for less threatening places.

The accusations of profiling are rife, and there's a whole lot of serious documentation to indicate that the complaints don't just come from a few disgruntled folks.

Anyway, Avila-Villa, you'll recall, asked the court for funds to hire a forensic psychiatrist.  She asked that she be allowed to have the request heard ex parte (in front of the judge alone, without the prosecutor there).  But the prosecutor objected.
No, the prosecutor argued, you have no right to tell the judge privately what your defense theory will be and what things you're investigating.  We can keep that stuff secret because we have a government funded budget.  But since you have to ask for money from the county, we get to know how you plan to use it and why.  (OK, that's not how the prosecutor put it, but that's the essence of the argument.)

But the prosecutor wasn't done.  You want a really good expert.  Nope.  Judge, don't let them have that.  All Avila-Villa is entitled to is a barely passable expert, and you shouldn't let her have more.  If she wanted a better expert, she should have been rich.  (OK, they didn't put it exactly that way, either, but that's the essence of the argument.)  Hell, read it for yourself.

Avila-Villa - State Response  

And as we know, the judge agreed.

What I said when I wrote about this before is still right.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.

So, you ask, if Gamso thinks he was right then, and if nothing's changed, why is he writing about it again?

Maricopa County, Arizona, naturally.

OK, I'll back up.

William Miller is on trial for his life in Maricopa County.  He's accused of killing five people, two of them children, in March 2006.  In July 2007, in a jailhouse interview, he told Jim Walsh of the Arizona Republic that he killed one of the five but that an accomplice (someone he refused to name) killed the others, including both children.

"I'm confessing to being responsible for them, yes," Miller, 30, said from his cell at the Fourth Avenue Jail.

"It's a loss of life. I sit there before I go to bed every night. I think about what could have been done differently."

At the time, he was intending to plead guilty.  And he was content with the prospect of a death sentence.   Apparently, that's all changed.

In April this year (if I'm reading the on-line docket correctly), Miller filed a motion asking for an ex parte hearing to address "defense investigation into mitigation matters."  Family members of the dead objected.  They claimed that under the Arizona Constitution and also under Arizona statutes, they have an absolute right to attend any hearing the defendant can attend.*  The trial court didn't buy it.  The rights of statutory "victims" can't trump the rights of a criminal defendant, the court said.

So the "victims" went to the court of appeals.  On Thursday, the court ruled.

Oh, sure, a defendant has a right to an ex parte hearing on mitigation matters.  But not a right that trumps the all important right of victims to be present.  Yeah, the court said, we know that if there's a conflict between the defendant's rights and the rights of victims a defendant should win.  But the Miller didn't say on the record what it is that he doesn't want to reveal (i.e., he didn't announce his secrets publicly), so really, there's no conflict. Victims win.

Morehart v. Barton  

And so we return from Maricopa County, Arizona to Maricopa Butler County, Ohio, where about the best thing you can say is that the victim's rights provisions of Ohio law are not so deeply offensive as the provisions of Arizona law.

And that Avila-Villa has an appeal pending.

UPDATE
I've seen the documents now. The pending appeal in Avila-Villa's case is not over the ex parte and funding issues.  So that ruling will stand, at least for now, in Butler County.

----------------------

*The so-called victims have, in fact, filed memoranda opposing many of the defense motions.  The already wobbly adversary system, one designed (though not applied) to favor criminal defendants, comes close to total collapse when the accused must defend himself against both the government and the vengeful bereaved.

Gifts That Keep On Giving

There's Maricopa County, of course, and frankly the whole state of Ariz (show-me-your-papers) ona.  But Andy hasn't made much fuss since the dead Rhino ad, and Joe chickened out of the run for Governor.

Sharon Keller's been lying low since she was fined $100,000 last week (though if they do prosecute her criminally for ethics violations that will be a circus worth attending) and while we wait for the State Commission on Judicial Conduct to decide what to do about the disciplinary charges against her (no links, it's everywhere, do your own homework).

John Bradley continues to do his best to ensure that the Texas Forensic Science Commission won't actually do a thing until at least 2011, and then will do it in secret and whitewash the whole Willingham fiasco.  Hell, I didn't even write about the last Commission meeting.

Fortunately, there's still Shirley Strickland Saffold and her not-so-secret identity as "lawmiss."

Saffold, of course, is the judge in Cuyahoga County who comments on stories on the Cleveland Plain Dealer web site - including on stories about the cases and before her.   (Oops, my bad.  It's probably not her.  I don't want to be sued for $50 million for a mistake like that.)

Turns out that, like all serial commentators, lawmiss doesn't have just one place at which she mouths off.  Per yesterday's Plain Dealer:

Now, a search of Web sites visited by Saffold's courthouse computer has turned up lawmiss usernames on at least 10 other Internet domains. Lawmiss comments on sites other than cleveland.com attack Arabs, disparage Asians and vilify white men. They sneer at inter-racial relations, condemn homosexuals and rail against police.

The PD doesn't exactly say that Saffold is lawmiss, but they sure make clear that it's likely.  And they give us plenty of examples of just what - too much fun.  I'll reprint the offensive stuff from the paper.

Lawmiss called Asians "flat face morons" when remarking on a story about the Chinese volleyball team.

And a story about a racist remark against the president prompted lawmiss to rail against whites: "how can white men be christan's, it's impossible. Their nature is to be nasty, convining, and decietful. They lie, they cheat, and they steal. And, they do it in a suit."

Lawmiss on AOL also insults people based on religion.

After France proposed banning burqas, lawmiss wrote "yeah, they ought to ban them, and if the muslims don't like it, then go home. you can't see their faces, you can't tell if they're men or women and they're criminals. if they want to wear that crap, then they ought to stay in saudi arabia, where it's acceptable and they have no intention of blowing anyone up."

An article about Ellen DeGeneres prompted Lawmiss to attack gays.

"She's s dyke, and that's all she's competent at. She's no dancer. Nest think you'll know the gays will take over."

Lawmiss attacks law enforcement, too.

A story about a police shooting in New Orleans induced lawmiss to comment
"Add this incident as another reason that Black people can NOT trust the police," lawmiss states. "What pigs---and what made them think they could get away. I suppose they considered that they could put on white hoods and ride in the middle of the night and scare the be-jesus out of people, so no one would tell." 

The story appeared yesterday.  Perhaps as a Mother's Day present, her daughter will take responsibility for all these comments, too.

And perhaps we ought to reconsider how people get to be judges in the great state of Ohio.

h/t Terry G

Cleveland - Where the Fun Never Stops

So we wait to see what happens in Maricopa County now that Joe no longer has his lapdog Andy Thomas handy. What, you didn't know Thomas resigned as County Attorney so he could run for state Attorney General?

Arpaio said he was not surprised by Thomas' resignation, though he admitted that his departure could jeopardize the prosecution of illegal immigrants in Maricopa County.

"I still have the authority to arrest people," Arpaio said. "We'll see if they prosecute them."

Arizona law says the County Supervisors appoint Andy's successor, but he wants the Governor to make the pick. Who draws the short straw may go some toward answering Joe's question.

Meanwhile Adam Stoddard waits to find out whether he'll have to ask Joe to pay his fine or he'll have to write 500 times, "I will no longer read privileged attorney-client communications when I might get caught."

Up in Connecticut, Steve Hayes has decided not to ask the state to assist him in a suicide attempt, which moots for the time being the question of whether his lawyers' obligation is to assist him in the endeavor or intervene to prevent their client from getting his wish. So the trial can proceed - actually jury selection. The trial is scheduled in the fall.

Then there's Juneau County, Wisconsin where District Attorney Scott Southworth sent a letter warning school boards that he stands ready and willing to prosecute teachers who obey the state law and teach sex education including instruction in contraception. Further, he warns that since the ACLU will be monitoring compliance with the law, teachers should consult counsel.*

So with that set of constitutional crises on hold for the moment, and with another week yet before

So let us drop in again on the ever curious happenings in and around the common pleas courtroom of Judge Shirley Strickland Saffold, Cuyahoga County, Ohio. You remember her.

She's the one who, back in 1995, was lecturing a woman who'd entered a guilty plea credit card fraud as part of an effort to find a good man. From the bench, in open court, Saffold told the woman:

Men are easy. You can go sit at the bus stop, put on a short skirt, cross your legs and pick up 25. Ten of them will give you their money. It's the truth. If you don't pick up the first 10, then all you got to do is open your legs a little bit and cross them at the bottom and then they'll stop.

But I just retell that story because, well, because I can't resist. What's relevant about her now is that she's the judge (at least for the moment) to whom Anthony Sowell's death penalty case has been assigned. And she's the judge who, it turns out, holds the AOL account from which "lawmiss" posts comments to news stories, including those about cases of hers, on the website of the Cleveland Plain Dealer. Saffold, you'll recall, denied that she did the posting. It was all the work of her daughter Sydney, she (and Sydney) said.

To which I, for reasons, that may be apparent a few paragraphs from now, say merely, "No comment."

Anyway, there have been, as they say, developments.

First, she's been asked to recuse herself from the Sowell case. In fact, she's being asked to recuse herself from every case in which Rufus Sims is counsel. As the Plain Dealer reports:

One lawmiss post, regarding a 2009 trial of an RTA bus driver, accused Sims of doing a disservice to a client.

"If only he could shut his Amos and Andy style mouth," the post reads. " What makes him think that is [sic] he insults and acts like buffon [sic] that it will cause the judge to think and see it his way. There are so many lawyers that could've done a much better job. This was not a tough case, folks. She should've hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around did not do it."

She's declined to do that, though she has a hearing scheduled for next week on recusal from the Sowell case.

But, of course, that's not the end of things. Because there's the principle of the thing. That's a $50,000,000 principle, if you were wondering. Or at least, the judge thinks it is.

Yesterday Shirley and Sydney filed suit (copy of complaint here) against the Plain Dealer and related entities and 990

currently unknown individuals that published defamatory and attacking statements against Plaintiffs under anonymous User Names on Cleveland.com that Plaintiffs will be able to locate once Defendants provide their Registration Information.

As I say, Shirley and Sydney want a cool 50 million - 25 in actual damages and 25 in punitive damages. Their complaint? Six counts:

Breach of Contract
Tortious Interference with a Contract
Promissory Estoppel
Fraud
Invasion of Privacy/False Light
Defamation

OK, the various forms of contract claims make some sense. Lawmiss signed up as a commentor with the promise of privacy and anonymity, a promise the PD broke. But the false light claims seems to rest mostly on the fact that the PD described the lawmiss e-mail address as the judge's personal address when she claims it's a family address used jointly by she and her daughter. As for defamation? That's all those folks who read the story and think the judge is a . . . . I don't want to say it lest I be sued.

Then there's the small matter of 25 million in actual damages. Hard to see how they came up with that figure. (Actually, it's not hard at all. Shirley, Sydney, and their lawyer pulled it out of their collective asses; that's how it's done.)

Here's what I do know.

They just ensured a whole lot more people would read the words of "lawmiss." And it seems that their lawyer, at least according to the PD, has conceded what neither Sydney nor Shirley would: The judge is responsible for at least some of what "lawmiss" said.

Cleveland. Someplace special.

-----------------

*I haven't a clue why he thinks ACLU monitoring will be a problem for teachers who obey the law, but I can see that he might think just flinging the words ACLU around will scare the bejesus out of the Juneau County locals.

Contempt in Maricopa

Adam Stoddard, bow your head in shame. Pay a fine. Take some classes. But skip the apology.

That's the guts of what the court of appeals said.

Let's review.

Adam Stoddard is, of course, the detention officer who felt it his duty to read and then copy confidential communication between a criminal defendant and his lawyer. In open court. While the defendant's lawyer was giving her sentencing speech to the judge. Ignored by judge and prosecutors.



There was, you recall, a hearing where Stoddard was found in indirect civil contempt and ordered to apologize to Joanne Cuccia (the lawyer whose files he invaded) or go to jail. Encouraged by his boss, Sheriff Joe, Stoddard refused to apologize. Instead, he went off to jail

Part of my job in providing security to the court is to inspect documents brought into the courtroom. On October 19th, I saw a document that I had not yet screened, and that raised security concerns. I retrieved that document in plain sight and had court personnel copy it to preserve it as evidence in case it was a security breach.

It was a split second decision and I do not regret my actions.

And then he went to the court of appeals.

Yesterday (actually, today, April 6, but it'll be yesterday by the time I get this posted), the court of appeals issued its ruling in an opinion by Judge Maurice Portley, for a unanimous three-judge panel. Nick Martin at Heat City, Paul Rubin at New Times, and Michael Kiefer at the Arizona Republic all tell the same story: Contempt upheld, sanction vacated.

Of course, it's more complicated than that.

Judge Donahoe (who, as Nick Martin points out, retired last week) found Stoddard in indirect civil contempt. Stoddard argued that Donahoe had no right to do that. He should, Stoddard apparently said, have found Stoddard in criminal contempt because his contemptuous behavior directly interfered with the actions of the court. Portley agreed that Stoddard was criminally contemptible (OK, contemptuous, I was just funnin'). But he was also civilly contemptuous, a distinction achieved in Arizona simply by means of the imposed punishment. And that was just fine. Contempt, it seems, is contempt.

Stoddard also argued that Donahoe denied him a right to present a full defense. Nonsense, said Portley. He got to say what he wanted. For instance, he said that there was nothing problematic that he saw in the letter which he had photocopied because it was necessary to preserve it as evidence of wrongdoing. Cool. You go Adam.

Finally, he argued that the punishment - that apology to Cuccia - violated his First Amendment rights. The court declined to answer that question on the principle that constitutional issues should not be examined if it isn't necessary. Since the sanction was inappropriate (Cuccia suffered no harm, Portley said, even if she thinks she did), it should be vacated. So instead of an apology, Stoddard should be maybe fined. Or forced to take a class in courtroom behavior and attorney-client privilege. Or to announce that what he did was wrong and he wouldn't do it again.

That last option is particularly interesting. Here's what Portley wrote:

Additionally, the court could consider having Stoddard tell the sentencing judge in open court what he admitted under examination by his lawyer: If he could do things over, he would either ask to approach the bench and apprise the court of his concerns or he would call his superiors about obtaining a warrant before independently deciding to invade Cuccia’s file.

Courts are confined to the record before them in making decisions. Stoddard said what he said during the hearing. But afterwards, after the contempt hearing, after the sentence was imposed, he said something rather different.

It was a split second decision and I do not regret my actions.

So, basically, he'd do it again.

Lesson decisively not learned.

But then, why would it be? Adam Stoddard, after all, works for Sheriff Joe.

But He Wasn't in Uniform

Really, I suppose it could have happened pretty much anywhere.

David Word drives a Black Ford Crown Victoria Police Interceptor. You know, the sort of car nobody but cops drive and that cops use for undercover work because that's the kind of car police departments buy. Anyway, Word has one. With rotating lights and a siren and a safety barrier and a cage and a mounted laptop on the inside. And he drives around pulling over bad drivers.

Except, of course, David Word is not a cop. His goal, it appears, is to keep the streets and highways of his community safe. But when he pulled over an off-duty cop for speeding . . . .

The good news is that he wasn't tased or beaten. The bad news is that he was found guilty of impersonating a police officer.

Like I say, it could have happened pretty much anywhere. In Toledo a guy dressed as Batman would sometimes walk along downtown streets and leave homemade parking tickets on cars that had overstayed their welcome at meters. There's probably someone like that in your community, too.

But it seems especially appropriate that Word was operating in a place where law enforcement itself shows no regard for the law, where who you associate with and who you criticize is key to whether you might be investigated or prosecuted. David Word was the antidote, patroling the mean streets without fear or favoritism. Or any lawful right to do so.

Still, what do you expect on the mean streets of Maricopa County.

h/t Arizona Republic & Legal Blog Watch

Maricopa: Once More Into the Breach

It's been almost a week since we paid a visit to Maricopa County where things aren't looking up for Joe 'n' Andy.
The counter suits proliferate.
Last time, we learned that Don Stapley, the twice indicted County Supervisor is planning to sue Sheriff Joe and Andy Thomas (and also himself as one of the County Supervisors) but will settle for $5 million.  Now, the AP reports that he declared Joe 'n' Andy are "evil" and can cause harm.
Another of the dysfunctional duo's victims, Judge Gary Donahoe, has now indicated that he's planning to sue.  His preliminary act, the Arizona Republic reports, was to send a letter to Joe, Andy, and the county demanding that "all information, physical and electronic, relevant to or bearing on Judge Donahoe" and any investigation or prosecution or lawsuit against him be preserved.  That demand letter isn't as advanced as the Notice of Claim letter Stapely sent last week, but that will likely be following.  Donahoe hasn't yet said it will take to buy him off.  (Hint:  There'll be a lot of zeros before the decimal point.)
While Stapley and Donahoe have been huddling with their own lawyers in Maricopa, another target of Joe 'n' Andy hopped a bus to the nation's capital.  Dennis Gilman took this video of  County Supervisor Mary Rose Wilcox delivering a speech at the big immigration rally in D.C.

The highlights, as Stephen Lemons, the Feathered Bastard notes are all about Joe.  To boos at his name, Wilcox says that Joe "terrorizes our communities."

He goes out in sweeps, and he tries to silence all his critics. I know because I was one of them. We spoke out against immigration policies that were repressive, and the sheriff charged me and tried to put me in jail.

Then she led the crowd of some 250,000 in chants of "Indict Arpaio."

And the investigation of Andy Thomas is heating up.  Ray Stern, writing in Valley Fever, picked up on this Administrative Order from the Arizona Supreme Court appointing John Gleason, "Regulation Counsel" for the Colorado Office of Attorney Regulation as independent bar counsel to investigate Andy.  The court went outside the state to ensure that the person they charged with conducting the investigation would have no "perceived bias."  I'm not sure about hidden bias, but mine's not to quibble.  In any event, here's what Gleason is to do.

3. Independent Bar Counsel Gleason shall investigate and, as he determines appropriate, prosecute allegations of ethical misconduct stemming from the prosecution in State v. Wilcox.

4. Independent Bar Counsel Gleason shall investigate and, as he determines appropriate, prosecute any other allegations of misconduct filed against Maricopa County Attorney Andrew Thomas or lawyers in his employ, arising out of criminal investigations or prosecutions involving the Maricopa County Board of Supervisors and its staff, collectively or individually, or the judges of the Superior Court in Maricopa and their staff, collectively or individually.

5. Independent Bar Counsel Gleason shall investigate and, as appropriate, prosecute any other allegations of misconduct filed against Maricopa County Attorney Andrew Thomas, or lawyers in his employ, arising out of matters assigned by Special Master Ruth V. McGregor.

6. Independent Bar Counsel Gleason shall investigate and, as appropriate, prosecute any other allegations of misconduct that are substantially similar or related to the allegations arising out of the matters set forth in number 4 above.

Think Ken Starr and Bill Clinton but probably without cigars and semen stains.

Finally, and really it's maybe the most astounding thing, Joe seems to have cloned Adam Stoddard.

You remember Adam.  He's the one who went on camera and lifted the letter from attorney Joanne Cuccia's file, thereby focusing the attention of the blawgosphere on Maricopa.  It's happened again, though this time we don't have video.  We do, though, have a transcript.

Scene:  The courtroom of Maricopa County Superior Court Judge Connie Contes.

Dramatis Personae: 

Eric Crocker, public defender

Randall Marc Korelc, client facing charges of second degree murder

The Honorable Connie Contes, judge (preoccupied, paying no attention)

Moses Rodriguez, Sheriff's Deputy

Valley Fever's Paul Rubin is our narrator:

Crocker says Korelc, who was handcuffed, handed him a file that included a two-page letter from the defendant instructing the attorney on legal strategies.

"I saw the deputy looking at me kind of funny, so in the interest of keeping things running smoothly I asked him if he wanted to check the file for contraband," Crocker says (though the   notion of an inmate trying to sneak something to an outsider sounds dubious on its face).

At this point, Crocker was at the defense table in front of the judge, as was his client. The deputy, Moses Rodriguez, was standing next to the table, closer to Korelc than to Crocker.

Crocker says he gave the file to Deputy Rodriguez and then turned his attention to the judge, who was starting the hearing -- a pretrial management conference. Crocker says he was about to formally announce his presence to the judge when he heard a rustling of papers.

"I looked over and saw this deputy turning my client's legal letter to me around -- it was upside-down when he pulled it out of the file--and he was reading it," Crocker tells us. "He wasn't looking for contraband, believe me. He was scanning attorney-client documents."

According to a transcript of the proceedings, here's what happened next:

Crocker: "Hold on. Don't read my client's writings."

Rodriguez: "Hold on a second. I'm not going to read it."

At this point, Crocker says, he had stepped around and was standing very close to Deputy Rodriguez, worried about what was going to happen next.

Crocker: "Give it back. All you do is look for contraband. Judge, can you intervene? I want my client's letter back."

Rodriguez: "Okay. I'm giving it back to you, okay? You want me to put it back inside the sleeve?"

Crocker: "No, that's all right. Thank you. Sorry about that, Your Honor. Just trying to avoid another problem [referring to the Adam Stoddard fiasco]." 

Apparently it worked out so well the last time.